Note: This is a reader’s blog. The views expressed are the writer’s views and not that of Lawctopus.

By Ali Waris Rao, Jindal Global Law School

Introduction

The Supreme Court’s judgement striking down the National Judicial Appointment Commission, 2014 is one of the most noteworthy and everlasting contributions.

One of the foremost points which the NJAC judgment makes is its profound comprehension of the issue of ‘Independence of Judiciary’.

The Ninety-Ninth Amendment Act did not get rid of the ‘Collegium’ or the view of the Chief Justice having overwhelming weight, however it likewise made the Head of the Executive who additionally was the Head of the Legislative party and additionally the Leader of the Opposition as two critical persons in the choice of ‘selectors’ of judges.

Without a doubt, such an arrangement would mean merging the Executive, the Legislature and the Judiciary which is totally prohibited under the Indian Constitution.

Role of Executive

What we should truly consider is that the Executive must have a say in the appointment of judges.

However, the Executives alone do not have a say, the Judicial Commission consists of the judges as well as the Executive so that a collaborative view is taken while appointing judges.

In 1990, when the National Front Government came into power, for the first time they proposed that India should aspire to have a judicial commission for the appointment of judges.

Thereafter, in 1993, the Supreme Court in the Advocates on Record Association case (Supreme Court Advocates on Record Association v. Union of India, 1993 (4) SCC 441) sought to change this procedure through an interpretation of Article 124 (2) of the Constitution of India.

This was erroneous in my view.

With due respect to the honourable Court, I firmly believe that in the process of interpretation they rewrote the Indian Constitution as I shall explain further.

Additionally, under Article 124 (2) of the Indian Constitution the President who represents the executive had to decide who should be the judge of the Supreme Court or the High Court in consultation with the Chief Justice of India and other judges.

The primacy was that of the Executive.

The Supreme Court interpreted Article 124 (2) to suggest that the primacy was not of the Executive but of the judiciary and further reiterated that without the concurrence of the Chief Justice of India no judge can be appointed by the Executive.

Subsequently, they had set-up what is called as the ‘Collegium’.

Furthermore, the word ‘Collegium’ has not been mentioned under Article 124 of the Indian Constitution.

Constitutional Validity

Also, there is no such thing as a ‘Collegium’ conceived of in the Indian Constitution.

Then, how the Chief Justice of India in consultation with two judges, i.e., the senior most judges of the Supreme Court, will decide to appoint judges of the High Court?

This is not even conceived of in the Indian Constitution.

More so, this resulted in a situation where the Executive was not part of the decision making process even though Justice Verma’s view (Majority opinion) suggested that this should be a collaborative exercise.

Moreover, as we find this system to work over the years we find that the Executive has no role to play. Today, we only have a ministerial function to perform.

The ‘Collegium’ system merely informs us about who the judges will be.

Another aspect that I would like to emphasize upon is that, is it really the case that judicial independence can only be protected and secured if judges in India choose their successors as opposed to the United States of America, which has one of the most independent judiciaries in the world and their judges are appointed by a combination of the Legislature and the Executive and the Judiciary has nothing to do with it?

Additionally, there is very little doubt that the present ‘Collegium’ system has been burdened with problems.

The present system of the appointment of judges to the higher judiciary is also inappropriate simply because it lacks transparency and accountability.

More so, under the Indian Constitution, the High Courts are sovereign in their own right in deciding matters which are independent of the Supreme Court and they are also not subordinate to the Supreme Court.

Further, it has also been observed that the judges of various High Court’s look to the judges of the Supreme Court for their appointments.

Now, this is disturbing the delicate constitutional balance which allowed the High Court judges to function independently of the Supreme Court.

In other words, this has disturbed the very independence of the High Courts in India.

If the Supreme Court is keen to protect the independence of the judiciary, it should have been equally keen to protect the independence of the High Courts.

Moreover, one of the basic features of the Indian Constitution is the separation of powers, i.e., the Legislature, Executive and the Judiciary.

The Legislature is charged with the responsibility of framing the laws, the Executive is armed with the responsibility of implementing them and the judiciary has the power to interpret and strike down those laws which are arbitrary and unfair through the process of judicial review.

Besides, in modern times, this delicate balance of separation of powers is disturbed and the act of appointment of judges is not a judicial act.

The act of appointment has nothing to do with interpretation of any provisions of the Indian Constitution. Accordingly, the act of appointment is an Executive act.

So, in that sense the Judiciary has taken over the Executive function through a process of interpretation by rewriting through interpretation Article 124 of the Indian Constitution.

Conclusion

In my view, that balance must be restored back.

The Executive must have a say in the appointment of judges.

However, the Executives alone do not have a say, the Judicial Commission consists of the judges as well as the Executive so that a collaborative view is taken while appointing judges.

Lastly, there is no perfect system for appointing judges and no magical criteria to make the choice process deductively specific.

Sensible individuals can differ about which applicant may make the best judge.

That said, those nominating judges should be able to defend their choices and those who are nominated must be able to withstand public scrutiny.

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3 Comments

tj

Firstly, are you really sure you want to claim “(United States of America) has one of the most independent judiciaries in the world”?
The political leanings and ideological commitments of SCOTUS judges, happens to be some of the most well exposed and discussed ones.

Judicial Independence, in both theory and fact, is a viable concept in the United States of America. Any type of government which seeks to promote the essential privileges of mankind would be well advised to consider the basic characteristics concerning the American Constitution seeing judicial independence as a beginning for its constitutional deliberations.

That is okay, in the sense that any new law cannot contradict the principle of separation of powers as practiced by them. But to say that the SCOTUS appointments are apolitical and/or neutral, which I think is an underlying idea argued by many when they use the phrase ‘independence of judiciary’, is a different matter altogether. The partisan lines in SCOTUS Benches is perhaps the most visible among Judiciaries of major nations.

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